Ideological Diversity and Textual Authority: Massachusetts Judges - - PowerPoint PPT Presentation
Ideological Diversity and Textual Authority: Massachusetts Judges and the Language of Jury Instructions John Curran Law, says the judge as he looks down his nose, Speaking clearly and most severely, Law is as I've told you before, Law is as you
Law, says the judge as he looks down his nose, Speaking clearly and most severely, Law is as I've told you before, Law is as you know I suppose, Law is but let me explain it once more, Law is The Law. —W.H. Auden
John Curran
Faculty & staff of the Anthropology Department
Susan U. Philips (University of Arizona); Elizabeth Mertz (Univ. Wisconsin); Andrew Arno (Univ. Hawai’i);
Wellesley College Dept. of Anthropology
Faculty & staff of the Anthropology Department
Susan U. Philips (University of Arizona); Elizabeth Mertz (Univ. Wisconsin); Andrew Arno (Univ. Hawai’i);
Wellesley College Dept. of Anthropology… for the office space.
“For people like us who have done comparable
research framed in terms of discourse, the
concept of language ideology may provide greater analytical precision… We would have done better to characterize these
is exactly what they are: shared ideas about
the linguistic practices that appropriate in legal contexts. Because different social groups have differential access to these divergent ideologies, and because only one is compatible with the dominant ideology
(2005:159)
But is “law” and legal practice ideologically diverse?
informed by a “complex interpenetration” of legal, political, and “control” ideologies.
ideological stances reflected wider social processes of ideological conflict and struggle
practices
“Trial court judges represent their implementation of the law as involving little or no gap among written forms of law and between written law and spoken law, which gives their words authority. But, as should be evident from this idea of the degree of gap, I argue here that there are significant gaps between the genres of law I examine… “[T]his diversity is obscured and hidden from members of the lay public because they see only the spoken law and do not have access to the interpretive practices of the judges as they index the written law in their spoken procedures. In this way the impression that the law is monolithic and singular is sustained.”
(1998:28)
Differences among their
ideological stances reflected wider social processes of ideological conflict and struggle
“The courtroom control ideology seems most like those analyzed in the emerging anthropological literature on language ideologies (e.g. Kroskrity, Schieffelin, & Woolard 1992)… It entails both practice and talk about practice (metapragmatics) and has both implicit and explicit dimensions. Still, language is subordinated to the
ideas of both control and informality, which is why I have called this a
CONTROL IDEOLOGY rather than a
language ideology.”
(1998a:196n3, citation and caps in original)
Linguistic ideologies mediating practice; … mediating all other forms of ideology?
Jury box, Suffolk Superior Court
Stage 0: Voir Dire (Jury Impanelment) Stage 1: Opening statements Plaintiff (π) Stage 2: Opening statements Defendant (∆) Stage 3: Plaintiff presents evidence and witnesses Stage 4: Defense cross‐examines Stage 5: Defense presents evidence and witnesses Stage 6: Plaintiff cross‐examines Stage 7: Plaintiff rebuttal Stage 8: Defense surrebuttal Stage 9: Defense closing statements Stage 10: Prosecutions closing statements Stage 11: Jury charge conference Stage 12: Judge instructs jury Stage 13: Jury deliberation (+questions) Stage 14: Presentation of verdict
My responsibility as the judge is to give you all the law you need to know in order to dissolve the issues placed before you in this trial. You must take the law as I give it to you and apply the law and the law alone to the facts as you collectively find the facts to be. You as the jurors are the sole fact finders in this case and you determine the credibility of
evidence must control; not the memory of the lawyers, not my memory, but your collective memories determine the evidence in this case. […]
Judge 1, Jury Instructions in Dail v. Shop & Go Supermarket Company (Slip & fall)
You must consider all the evidence you've heard during the trial calmly, dispassionately, without sympathy. You're in search of a verdict; the word verdict extending from two Latin words Dictum Veritas, meaning to speak the
in this case, as in all cases. You are the sole judges of the facts; I am the sole judge of the law. You decide the facts and of course you must make your determinations in this case, your verdict, based on the law as I give it you concerning the facts as you find the facts to be.
Sketch of Judge 2 by Anonymous spectator
“Research on the processes by which jury instructions are entexted will likely reveal a rich, patterned diversity
linguistic, cultural, political, and legal — among judges. “
evidence of the ideological stances suggested in the existing literature:
1.
comprehension vs. accuracy;
3.
narrative vs. paradigmatic
70‐80% Jury Instructions
closing arguments, witness testimony/examination
Suffolk County Superior Court, Boston foreground: SJC & Appeals Court
(courtesy: flickr)
+ Public nuisance + Prisoner case
Sexual harass. / national origin
emotional distress + Appeal of
Judge 2 decision in District Court
Goods & services ADA/reasonable accommodation Firearm poss. (criminal) Insurance contract Personal Injury / Architectural malpractice
Motor vehicle negligence Slip & fall Employment discrim. Contract dispute
Quotations of texts Which instructions were given?
Rate of speech as
“you” v. “I” Royal “we”
“shall”, “may”, “must”
Obviously, clearly
Pattern Instruction § 2.1.8 "Causation.“ (source text)
Daniel Webster Courtroom Middlesex Superior (Lowell)
Interestingly, some judges said their political
views may influence their judicial behavior where discretion is expressly allowed (e.g. sentencing)
“Inoculate the case against appeal.” Appellate court “too liberal.”
“Women talk; men decide.”
Different levels of priority Different political attachments anxieties about my research:
Innovative jury trial practices
What systematic patterns of differences can we identify in these judges’ uses of, and ideas about, language? How do these affect judicial behavior?
Law, says the judge as he looks down his nose, Speaking clearly and most severely, Law is as I've told you before, Law is as you know I suppose, Law is but let me explain it once more, Law is The Law.
Yet law‐abiding scholars write: Law is neither wrong nor right, Law is only crimes Punished by places and by times, Law is the clothes men wear Anytime, anywhere, Law is Good morning and Good night.
— W.H. Auden
Merry 1990 Conley & O’Barr 1990 Philips 1998 Present study Pima County, AZ 9 (final); 4 (pilot) 44 pleas
Career history interviews No; guilty pleas Site(s) Cambridge & Salem, MA 6 cities (North Carolina, Colorado, Mid‐Atlantic region) Boston, Cambridge, Dedham, & Lowell, MA # of judges # cases Not specified. 14 536 cases observed 156 transcribed cases 5 judges 12 cases Hours of courtroom recordings Trial data? None permitted. Some? Not specified. 19 transcribed litigant interviews Yes 15 hrs. 3.5 hours of semi‐structured interviews with judges Yes.
Related studies in Anthropology
Jury box, Suffolk Superior Court